By Minh N. Vu

On June 22, we reported on the U.S. District Court for the District of Massachusetts’ ruling that Netflix’s video streaming website is a “place of public accommodation” covered under Title III of the ADA, even though the website has no nexus to a physical place.  This ruling was not surprising given First Circuit precedent that dictated the district court’s decision.  The U.S. District Court for the Northern District of California reached the opposite conclusion this month in  Cullen v. Netflix, Inc.  Following Ninth Circuit precedent, the California federal court held that a “place of public accommodation” must be an “actual physical place.”  It found that a video streaming website is not an actual physical place and therefore is not covered by the ADA.

Although Cullen had only asserted claims under California law and not the ADA, the court first analyzed whether the ADA covered the website because both California’s Unruh Act (Unruh Act) and Disabled Persons Act (DPA) state that a violation of the ADA is also a violation of the Unruh Act and DPA.  Having determined that there was no violation of the ADA, the court next analyzed whether the video streaming website’s lack of captioning nonetheless constituted violations of these California statutes. 

The court found that under the Unruh Act, a plaintiff must prove “intentional discrimination” based on allegations of “willful, affirmative misconduct.”  Allegations of Netflix’s failure to caption all its streaming videos were not enough, in the court’s view, to establish intentional discrimination, particularly in light of its ongoing and expanding effort to affirmatively add captions to its video streaming library.  The court granted Cullen leave to amend the complaint to add allegations of intentional discrimination. 

The court held that to establish a DPA claim that is independent of the ADA, a plaintiff would have to make “a showing that accessibility regulations promulgated under California law exceed those set by the ADA.”  Since Cullen had not alleged a violation of any such regulations, the court gave Cullen leave to amend his complaint to correct this deficiency.